Stevens v . Liberty Mutual CV-11-218-PB 7/29/13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Isabel Stevens

v. Civil N o . 11-cv-00218-PB Opinion N o .

Liberty Mutual Group Inc.

MEMORANDUM AND ORDER

Isabel Stevens, a former Associate Financial Analyst in the

financial department at Liberty Mutual Group Inc. (“Liberty

Mutual”), signed a Severance Agreement and General Release

(“Agreement”) upon her separation from Liberty Mutual releasing

all legal claims against her employer in exchange for severance

pay. She subsequently filed suit alleging violations of various

federal and state anti-discrimination laws relating to her

discharge. Liberty Mutual answered the complaint, denying

liability and asserting counterclaims against Stevens for breach

of contract, unjust enrichment, and fraud. Liberty Mutual now

moves for summary judgment, arguing that Stevens waived her

claims when she knowingly and voluntarily executed the

Agreement, and, even if Stevens did not waive her claims,

Liberty Mutual is entitled to judgment as a matter of law. Liberty Mutual also moves for summary judgment with respect to

its counterclaims.

Stevens objects to Liberty Mutual’s motion, arguing that

the Agreement is unenforceable because she was fraudulently

induced to sign it and was under duress at the time. She also

argues that the defendant’s motion for summary judgment should

be denied because the parties dispute material facts. Because I

conclude that the severance agreement and general release are

enforceable, and Stevens’ claims are within the scope of the

release, I grant the defendant’s motion for summary judgment

(Doc. N o . 49) with respect to Stevens’ claims against Liberty

Mutual without reaching the merits of those claims. I deny the

motion with respect to Liberty Mutual’s counterclaims against

Stevens.1

1 Liberty Mutual’s counterclaims are premised on its view that Stevens violated the Agreement by initiating this lawsuit. The counterclaims do not appear viable for the following reasons. First, Liberty Mutual’s claim for breach of contract (alleging that Stevens filed suit in violation of the Agreement) is unlikely to succeed because, “[f]airly construed, [Stevens’] complaint seeks not simply damages for unlawful termination but, necessarily, a judicial determination that the Severance Agreement is not enforceable.” Bryant v . Liberty Mut. Grp., Inc., N o . 11-cv-217-SM,

, *11 (D.N.H. May 3 1 , 2013). Liberty Mutual does not argue that Stevens waived her right to seek such a determination. Liberty Mutual’s claim for unjust enrichment is similarly unlikely to succeed because, in 2 I. BACKGROUND2

Stevens graduated from Traip High School in Kittery, Maine,

in 1969. T r . 7 9 . She never attended college, but successfully

completed courses in Excel and Access while employed at Liberty

Mutual. T r . 79-80.

Stevens started working at Liberty Mutual as a part-time

employee in May 1991 and transitioned to full-time employment

within three months. T r . 1 7 . She initially held a data entry

supervisory position in the disbursements department. T r . 1 8 .

Beginning in 2005, she worked as an associate financial analyst

and continued in that position until 2010 when she separated

from Liberty Mutual. T r . 18-19.

In 2009, Stevens spoke with her supervisor, Terry Bryant,

to express her concern that her workload was too heavy. T r . 23-

light of the court’s decision that the Agreement is enforceable, Stevens is entitled to retain her severance pay. See

Finally, the record does not appear to support Liberty Mutual’s claim for fraud, specifically, that Stevens misrepresented her intention to comply with the Agreement. If Liberty Mutual pursues these claims, Stevens will be entitled to address them in a motion to dismiss. 2 The summary of facts is taken primarily from Stevens’ sworn testimony during her December 1 1 , 2012, deposition. Doc. N o . 49–4. I present the facts in the light most favorable to the non-moving party, which, in this case, is the plaintiff. 3 24. Bryant told Stevens that she would talk to management, and,

a month later, Stevens learned that management had instructed

Bryant to conduct a work study to evaluate her workload. Tr.

24-25. Following completion of the work study, management

concluded that Stevens had too much work. Tr. 25.

Around the same time, Stevens began experiencing medical

problems, including a lump in her nose that caused bleeding, and

learned that she needed surgery for a deviated septum. Tr. 43.

Liberty Mutual approved Stevens’ medical leave for February 9,

2010, to February 2 2 , 2010. T r . 2 8 , 4 4 . Based on the work

study, Stevens believed that her workload would be reduced when

she returned from medical leave. T r . 2 6 .

While Stevens was on medical leave, her supervisor, Bryant,

separated from Liberty Mutual. Subsequently, Bryant made

several statements to Stevens that made Stevens believe Liberty

Mutual was seeking to get rid of older employees. Although Sara

Cotter, Stevens new manager, told Stevens that Stevens did not

have to worry about losing her job, T r . 3 1 , Bryant told Stevens:

“Remember what I told you, that they’re after the older people.”

Tr. 3 2 . Stevens believed Bryant was implying that Stevens might

be fired because of her advanced age, despite Cotter’s

4 assurances to the contrary. T r . 3 2 . Bryant also told Stevens

that she heard that the company “wanted to get rid of the older

people and that I was targeted.” T r . 3 6 . Bryant told Stevens

that two other older women were being targeted. T r . 39–40.

Stevens also believed that Liberty Mutual wanted to get rid

of older employees because she heard a statement made by another

employee, Mark Griffin, that Bill McQuillan (also an employee)

was “too old, he shouldn’t be working here still.” T r . 145-46.

On February 1 9 , 2010, Stevens emailed Cotter and Jennifer

Berrios, another manager, to let them know that her doctor had

cleared her to return to work, but had told her that she would

need to have a stress-free work environment. T r . 46-47.

Stevens and Liberty Mutual agreed that upon her return, Stevens

would work part-time processing W-9s, which was less complicated

work than the work she performed prior to her surgery. T r . 47-

48. On February 2 2 , 2010, Stevens returned to work part-time,

Tr. 4 8 , though her salary stayed the same. T r . 5 2 . Stevens and

Liberty Mutual agreed that she would continue processing W-9s on

a part-time basis until her doctor cleared her for full-time

work. T r . 4 8 . Cotter told Stevens that, once she went back to

full-time work, her workload would be the same as it was before

5 she went on medical leave, in spite of the fact that Bryant had

promised Stevens a workload reduction. T r . 2 7 . Stevens also

learned that, once she resumed full-time employment, she would

be assigned two additional hours of work per week on top of the

duties she performed prior to taking medical leave. T r . 112.

Stevens said that when she returned on February 2 2 ,

“[s]omething had changed.” T r . 49–50. According to Stevens,

“[t]he other supervisors weren’t talking to me and . . . my

thought was that they were trying to get rid of me and the other

supervisors knew about it and they would – they were just

ignoring m e . The people who used to say hello to me didn’t say

anything to me.” Tr. 5 0 .

After her return to Liberty Mutual and in anticipation of

having to resume her full-time duties plus two additional hours

of work, Stevens met several times with Janna Pasquini,

Principal Human Resources Generalist, to discuss her options,

given that her workload was not going to change even though “it

was a proven fact that it was too much work for one person.”

Tr. 63-65. Pasquini suggested that Stevens retire or look into

getting another job. T r . 6 4 . Stevens asked if there were any

positions available in the financial department, and Pasquini’s

6 “automatic answer was, ‘No.’” Tr. 6 4 .

On March 1 , 2010, Stevens emailed Cotter to tell Cotter

that she was looking for other available positions in the

company and considering retirement. T r . 6 5 . Stevens said that

she was looking into these options at Pasquini’s suggestion.

Tr. 6 6 . Before Pasquini’s suggestion, Stevens planned to retire

at age 62 or when she was financially able to do s o .

At

some point, Stevens came to work early to look at the job board,

and her badge was rejected. T r . 6 7 . Stevens believed she was

being fired, though, in fact, her badge had not been programmed

to work on the particular door she tried to enter. T r . 67–68.

After exploring her options, Stevens concluded that there were

no suitable positions posted, but she would not retire. T r . 6 7 .

Around March 1 5 , 2010, Stevens’ doctor cleared her for work

without restrictions. T r . 48–49. She resumed the duties she

performed prior to taking medical leave, and was never assigned

the additional two hours of work per week that her supervisors

had told her to expect. T r . 113. Stevens was unable to recall

any unreasonable demands that Berrios made on her after she

returned from medical leave. T r . 141.

In a meeting with Pasquini around March 2 0 , Pasquini told

7 Stevens that Stevens “had three choices” if she felt she could

not perform her duties. T r . 7 5 . Stevens could (1) quit and

forgo unemployment benefits; (2) continue working while

undergoing performance management (Stevens understood this

option to mean that she would be let go for gross misconduct and

would not be able to collect unemployment); or (3) sign a

severance agreement and collect severance pay and unemployment

benefits. T r . 7 5 . Pasquini reiterated these three options on

March 3 0 , 2010. T r . 8 4 .

Stevens discussed the options with her boyfriend. Tr. 89.

They concluded that she could not quit or undergo performance

management because either option would require Stevens to forgo

unemployment benefits, which they could not afford to d o . Tr.

89.

On April 6, Stevens’ supervisors confronted her about her

work performance for the first time since she began working for

Liberty Mutual. T r . 5 5 . On that day, Stevens had a 10:00 a.m.

meeting scheduled with Cotter, but she had to leave the office

around 9:15 a.m. for a doctor’s appointment and could not find

Cotter or Berrios to tell them that she was leaving work for the

appointment. T r . 5 5 . In the past, when Stevens forgot to inform

8 a supervisor that she needed to leave the office for an

appointment, it had not been a problem, and she did not expect

it to be a problem on April 6. Tr. 56.

Stevens returned to work at 10:15 a.m., after her doctor’s

appointment, and stopped by Cotter’s desk where the meeting was

supposed to take place. T r . 5 9 . Cotter was not at her desk, so

Stevens went back to her own desk. T r . 6 0 . A short time later,

Cotter came to Stevens’ desk and asked her to come to Berrios’

office with her. Once there,

Jen started yelling at me right away – she didn’t give me a chance to explain what happened – saying how it was against policy to leave without telling a manager and that she had to miss a meeting because of my not being able to meet with Sara and that she felt that I was not doing my work and asked me if I had the energy and the ability to do my work.

Tr. 60-61. Berrios told Stevens to return to her desk. Stevens

said she felt “mortified.” T r . 6 1 . Stevens returned to her

desk, and Cotter stayed in the office with Berrios. T r . 6 1 .

That afternoon, Cotter brought Stevens into Berrios’ office

and gave Stevens a verbal warning for leaving the office without

telling anyone and failing to talk frequently enough during

meetings. T r . 69-70. Berrios was not present at that meeting.

Cotter told Stevens to write down the substance of the warning.

9 Stevens was aware of the company policy prohibiting employees

from leaving without telling a supervisor, but was unaware of

any policy requiring her to speak during meetings. T r . 7 1 .

Stevens believed “that verbal warnings meant that they want to

get rid of you.” Tr. 7 1 .

The next day, Stevens told Pasquini that she had received a

verbal warning, and Pasquini’s “first words were, ‘Then you

should take the severance agreement,’ so [Stevens] felt like

[she] was being forced to do [so].” Tr. 73. Pasquini

reiterated the three options Stevens had, and Stevens said in

response, “Well, then you might as well bring the paperwork

today.” T r . 136-37. Pasquini then told her, “I’ll call you

back and let you know what time we’ll be there so you can do the

severance.” Tr. 73.

At the deposition, defendant’s counsel asked Stevens, “And

what is your basis for saying that Janna [Pasquini] forced you

and tricked you into signing the release? What was the force

and what was the trick?” T r . 149. Stevens responded, “The

force was that she didn’t give me any other choice. She said,

‘Do this, this or this,’ and none of the choices w[as] viable

for me.” T r . 149. Pasquini “didn’t say we’ll try and find you

10 another job, you know, or anything like that to help me.” Tr.

150.

Stevens testified that she did not want to continue working

after receiving the verbal warning. She believed that the

warning meant that Liberty Mutual was trying to force her out of

her position, and Stevens did not know of any avenue through

which to challenge the verbal warning.

Around 9 a.m. on April 7 , 2010, Stevens wrote an email to

Irene Earle-Rice, a Senior Benefits Consultant, stating, “I have

decided today is my last day at work. Would you please send me

the necessary paperwork to start retirement?” T r . 137.

Nonetheless, Stevens testified at her deposition that when she

was presented with the agreement in the afternoon on April 7 ,

she did not want to end her employment with Liberty Mutual, and

she had no intention of doing s o . T r . 9 3 .

Pasquini presented Stevens with the severance agreement and

Valencia Augusta, the Human Resources Manager for the financial

department, was present as a witness. T r . 93-95. When Pasquini

presented the Agreement, Pasquini explained that Stevens “needed

to sign it in order to get unemployment.” Tr. 95.

Stevens did not read the agreement during the meeting, but

11 Pasquini noted the provision in the document that stated,

“Notwithstanding the foregoing or Section 6 below, employee is

not waiving his or her right to bring claims that cannot be

released as a matter of law.” T r . 100. Pasquini also told

Stevens that Stevens did not need to hire a lawyer.3 T r . 171-72.

Stevens left the meeting with a copy of the severance

agreement and a copy of a letter dated April 7 , 2010, which

stated that in order to receive severance pay, Stevens must sign

the agreement and general release. T r . 101-02. Defense counsel

asked Stevens at her deposition whether she saw the language

that stated, “Your decision to accept or reject the severance

pay and outplacement services is voluntary and will in no way

affect your receipt of the regular benefits outlined above.”

Tr. 103. Stevens responded, “I see that, but she didn’t – she

just kept saying to m e , ‘The only reason you’re signing the

severance agreement is to get the unemployment.’” T r . 103.

3 “Q. Well, I thought you had told us everything that you could remember about that spiel [that Pasquini gave during the April 7 meeting] and I didn’t hear any reference to a lawyer. Now you’re saying that she said that [you didn’t need to hire a lawyer] during that meeting? A . I didn’t remember that. It was long ago. I don’t remember every single thing. Q . But you do remember it now that I reminded you of it? A . Yes. Q . And it just came up? She said, ‘Oh, and you don’t need to hire a lawyer?’ A . Right.” T r . 171. 12 Stevens did not sign the severance agreement during the

April 7 meeting. T r . 104. Pasquini told Stevens that she had

seven days to consider the agreement, though in fact the

Agreement gave Stevens forty-five days to consider the agreement

and an additional seven days after signing the agreement to

revoke her signature. T r . 105. Stevens took the agreement home

and signed it two days later, on April 9, 2010. T r . 104.

Stevens said that she “read parts” of the agreement before

signing i t , found it confusing, and generally relied on

Pasquini’s statement that she was only signing it to collect

unemployment. T r . 107.

Stevens did not realize she was giving up any legal rights,

and she did not ask anybody to help her understand the

agreement. T r . 122–23.

Stevens had the opportunity to discuss the document with

her boyfriend or anyone else, and she knew that she was

executing a legal document. T r . 108. Stevens believed she had

seven days to consider the agreement, not realizing that the

contract actually gave her forty-five days to consider i t ,

because Pasquini “never told me that.” T r . 108. Stevens also

did not understand that she had seven days from the date of

13 signing to revoke the agreement. T r . 108-9. Stevens noticed

the portion of the agreement, written in all capital letters,

explaining that she was releasing claims in exchange for

severance, but it did not have any special significance to her.

Tr. 168.

Stevens believed that Liberty Mutual incurred an obligation

to pay her severance because she signed the agreement. T r . 118.

At the time she signed the agreement, the only performance

management she had received was the verbal warning. T r . 111.

She stated that if Liberty Mutual had been “at all helpful” to

her in finding another job or had decreased her workload, she

would have stayed despite the verbal warning. T r . 112.

A week or so after signing the agreement, Stevens learned

that she would not get unemployment benefits until her severance

pay ran out. T r . 110-11. Several weeks after Stevens hand-

delivered the signed severance agreement to Pasquini, Stevens

began receiving severance pay pursuant to the agreement. Tr.

109. She received twenty-one weeks of severance pay, in

accordance with the Agreement. T r . 109.

At some point before her severance payments ran out,

Stevens went to see an attorney. T r . 125-26. By May 1 4 , 2010,

14 she had decided to repudiate the agreement. T r . 128. After

deciding to challenge the agreement, Stevens continued to

receive severance payments, spent the money, and never offered

to return i t . T r . 129. Stevens applied for unemployment

compensation when her severance ran out. T r . 130. She now

brings claims against Liberty Mutual alleging, among other

things, age discrimination in violation of state and federal

statutes.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The court must consider the evidence submitted in

support of the motion in the light most favorable to the

nonmoving party, drawing all reasonable inferences in its favor.

See Navarro v . Pfizer Corp.,

0 , 94 (1st Cir. 2001).

A party seeking summary judgment must first identify the

absence of any genuine dispute of material fact. Celotex Corp.

v . Catrett,

1 7 , 323 (1986). A material fact “is one

‘that might affect the outcome of the suit under the governing

law.’” United States v . One Parcel of Real Prop. with Bldgs., 15

0 0 , 204 (1st Cir. 1992) (quoting Anderson v . Liberty

Lobby, Inc.,

4 2 , 248 (1986)). A dispute “is ‘genuine’

if the parties’ positions on the issue are supported by

conflicting evidence.” Int’l Ass’n of Machinists & Aerospace

Workers v . Winship Green Nursing Ctr.,

(1st Cir. 1996) (citations omitted).

If the moving party satisfies its burden, the burden shifts

to the nonmoving party to “produce evidence on which a

reasonable finder of fact, under the appropriate proof burden,

could base a verdict for i t ; if that party cannot produce such

evidence, the motion must be granted.” Ayala–Gerena v . Bristol

Myers–Squibb Co.,

6 , 94 (1st Cir. 1996); see Celotex,

. If the non-moving party’s “evidence is merely

colorable, or is not significantly probative,” no genuine

dispute as to a material fact has been proved, and “summary

judgment may be granted.” Anderson,

(citations omitted).

“The key, then, to defeating a properly supported motion

for summary judgment is the non-movant’s ability to support his

or her claims concerning disputed material facts with evidence

that conflicts with that proffered by the moving party.” Bryant

16 v . Liberty Mut. Grp., Inc., N o . 11-cv-217-SM,

,

*2-3 (D.N.H. May 3 1 , 2013) (citing Fed. R. Civ. P. 56(c)). It

follows that while a reviewing court must take into account all

properly documented facts, it may ignore a party’s bald

assertions, unsupported conclusions, and mere speculation, see

Serapion v . Martinez,

8 2 , 987 (1st Cir. 1997), as well

as those allegations “which have since been conclusively

contradicted by [the nonmoving party’s] concessions or

otherwise.” Chongris v . Bd. of Appeals,

6 , 37 (1st

Cir. 1987). Moreover, the nonmoving party cannot create a

dispute concerning material facts simply by submitting an

affidavit that contradicts her deposition testimony without

providing an adequate explanation for that discrepancy. See

Colantuoni v . Alfred Calcagni & Sons, Inc.,

, 4-5 (1st

Cir. 1994); see also Torres v . E.I. Dupont de Nemours & Co.,

3 , 20 (1st Cir. 2000).

III. ANALYSIS

Stevens claims violations of various state and federal

statutes including the federal Age Discrimination in Employment

Act (“ADEA”) (Count I ) , the Family Medical Leave Act (“FMLA”)

17 (Count X ) , and the New Hampshire statute prohibiting age

discrimination (Count I I ) . Stevens also claims constructive

discharge (Count I I I ) , wrongful termination (Count I V ) , fraud

(Count V ) , undue influence (Count V I ) , fraudulent

misrepresentation (Count V I I ) , negligent misrepresentation

(Count VIII), retaliation (Count X I I ) , and “enhanced

compensatory damages” (Count I X ) . 4 Each of these claims falls

squarely within the scope of the Agreement.5 Thus, if the

Agreement is valid and enforceable, it bars each of Stevens’

claims. Accordingly, I turn to the threshold question of

4 Although it does not affect the outcome of the motion, I note that Counts V I , V I I , and VIII, in the context of the present case, are more properly characterized as defenses to a contract enforcement action. Additionally, constructive discharge, alleged in Count I I I , is not a cause of action, but rather a means by which to establish an element of a wrongful termination claim. See, e.g., Lacasse v . Spaulding Youth Ctr.,

(2006). Finally, “enhanced compensatory damages” (Count IX) is a potential remedy, not a cause of action. See Precourt v . Fairbank Reconstr. Corp.,

2 7 , 344 (D.N.H. 2012). 5 Pursuant to the Agreement, Stevens expressly released any claims arising out of her “separation from that employment” with Liberty Mutual; “rights or claims that [she] may have pursuant to the Severance Plan”; rights or claims she may have pursuant to the ADEA or the FMLA; and rights or claims she may have pursuant to any “federal, state or local . . . law . . . authorizing claims based upon . . . age” or arising under “common law.” See Doc. N o . 50-4. Stevens’ claims plainly fit into these categories, and Stevens nowhere asserts otherwise. 18 whether the Agreement is enforceable.

Stevens argues that the Agreement was not a valid waiver of

her ADEA claim (Count I ) because it does not meet the

requirements of the Older Workers Benefit Protection Act

(“OWBPA”). See

(f). With respect to each of her

other claims, Stevens argues that the Agreement is not

enforceable because she signed it under duress and because her

employer defrauded her into believing that the Agreement only

governed severance and was not a release of claims against

Liberty Mutual. After reviewing the evidence in the light most

favorable to the nonmoving party (here, the plaintiff) and

drawing all reasonable inferences in her favor, I conclude that

there is no genuine dispute of material facts and the Agreement

is enforceable. I therefore grant Liberty Mutual’s motion for

summary judgment as to Stevens’ claims against i t .

A. Stevens’ ADEA Claim and the OWBPA

Count I of the complaint charges violations of the Age

Discrimination in Employment Act (“ADEA”).

(b).

In 1990, Congress passed the OWBPA, which amended the ADEA by

adding a list of requirements that must be met in order for a

waiver of ADEA claims to be enforceable. See

621(f)(1); Oubre v . Entergy Operations, Inc.,

2 2 , 426

(1998). Congress intended for the OWBPA to resolve a circuit

split regarding the proper criteria for determining whether an

employee’s waiver of rights under the ADEA was knowing and

voluntary. See Am. Airlines, Inc. v . Cardoza-Rodriguez,

1 1 , 117 (1st Cir. 1998). The OWBPA states: “An individual

may not waive any right or claim under [the ADEA] unless the

waiver is knowing and voluntary. . . . [A] waiver may not be

considered knowing and voluntary unless at a minimum” it

satisfies the enumerated requirements in § 621(f)(1):

1 . It must be written in a manner calculated to be understood by the employee signing the release, or the average individual eligible to participate;

2 . It must specifically refer to claims arising under the ADEA;

3 . It must not purport to encompass claims that may arise after the date of signing;

4 . The employer must provide consideration for the release of an ADEA claim above and beyond that to which the employee would otherwise already be entitled;

5 . The employee must be advised in writing to consult with an attorney prior to executing the agreement;

6. The employee must be given at least 21 days to consider signing the release (that period is extended to 45 days if the incentive is offered to a group or class of employees); and 20 7 . The release must allow the employee to rescind the agreement for up to 7 days after signing.

Bryant,

, at *2-3 (citing

(f)(1)(A)-(G)).

If a waiver fails to meet any single requirement, “the

release is void as to all ADEA claims.” Budro v . BAE Sys. Info.

& Elec. Sys. Integration, Inc., N o . 07-cv-351-SM,

, *3 (D.N.H. Apr. 1 6 , 2008) (citing Oubre, 522 U.S. at

426-27). Therefore, to be entitled to summary judgment on the

issue of the agreement’s enforceability, Liberty Mutual must

“demonstrate that there [is] no issue of material fact as to

whether the [release] complied with each of the section 626(f)

requirements.” Id. (quoting Am. Airlines,

)

(alterations in the original).

1. Statutory requirements for waiver of an ADEA claim

As in Bryant, “Liberty Mutual plainly drafted the Severance

Agreement with the requirements imposed by the OWBPA in mind.”

Bryant,

at * 5 . Nevertheless, Stevens argues

that Liberty Mutual failed to satisfy two of the statutory

requirements of a valid waiver: (1) that the individual receive

consideration in exchange for the waiver, see

626(f)(1)(D); and (2) that the release be written in a manner

calculated to be understood by the employee, see

(f)(1)(A). Doc. N o . 50-1.

a. Consideration

Stevens claims that she received no consideration for

signing the agreement in violation of § 626(f)(1)(D). Doc. N o .

50-1. She argues that the severance pay she received did not

constitute consideration because she was already entitled to

severance benefits pursuant to the company’s Severance Pay Plan.

Doc. N o . 50-1. Her assertion is unsupported by the record.

Stevens states in a conclusory fashion that she had a right

to severance benefits pursuant to the Liberty Mutual Severance

Pay Plan, notwithstanding the Agreement. See Doc. N o . 50-4 at

2 , Affidavit of Isabel Stevens; Doc. N o . 50-1 at 1 5 . Stevens,

however, ignores the plain language of the operative agreement,

the 2010 Severance Pay Plan,6 which states, “You are eligible to

6 The parties have filed two different versions of Liberty Mutual’s Severance Pay Plan (“SPP”). Stevens submitted an SPP dated March 2001 with her objection to defendant’s motion for summary judgment. Doc. N o . 50-4. After reviewing this court’s Bryant decision, which referenced a 2010 Liberty Mutual SPP, I requested clarification as to which document was operative – the 2001 or the 2010 SPP - when Stevens signed the Agreement. The distinction matters because the 2001 SPP does not clearly state that an employee must release legal claims against the company 22 receive Severance Benefits only if you meet one of the following

criteria, provided that you execute a release of all employment

related claims in favor of the Company and its officers and

employees.” Doc. N o . 58-3 (emphasis added).

Stevens was entitled to severance pay only because she

signed the Agreement; she had no independent right to severance

benefits pursuant to the SPP, as she claims. Section 3 of the

signed Agreement is entitled “Consideration” and states,

in order to receive severance benefits, while the 2010 SPP does clearly state that severance benefits are available only if the employee “execute[s] a release of all employment related claims.” Doc. N o . 58-3. Thus, if the 2001 SPP were operative, Stevens would have a colorable argument that she did not receive consideration for signing the Agreement because she was entitled to severance benefits pursuant to the SPP. Liberty Mutual supplemented the record with a copy of a February 2010 SPP and an affidavit by Christine Lahey, Vice President of Employee Relations and HR Services, stating that the 2010 SPP was operative in April 2010 when Stevens signed the Severance Agreement. Doc. N o . 5 8 . Stevens did not assent to the filing and instead responded to Liberty Mutual’s submission with an excerpt from the deposition of Terry Bryant taken in connection with Bryant’s own lawsuit against Liberty Mutual. In the excerpt, Liberty Mutual’s then-counsel Dan Schwarz stated that he could not say to a “moral certainty” that the 2010 SPP was operative in 2010. Doc. N o . 59-3. Schwarz was not under oath. Moreover, Stevens does not assert that the 2010 SPP was not operative, nor does she affirmatively claim that the 2001 SPP was operative. She states merely that she “believed in good faith” that the 2001 SPP was operative. Doc. N o . 5 9 . Stevens has failed to identify a genuine dispute as to which SPP was operative in 2010 when Stevens signed the Agreement. 23 “Employee acknowledges and agrees that Liberty Mutual’s

agreement to provide the Severance Pay to Employee constitutes

fair and adequate consideration for Employee’s execution of this

Agreement and Employee’s fulfillment of the promises made in

this Agreement.” Doc. N o . 50-4 at 5 . Stevens read this

provision. Doc. N o . 49-4 at 32. 7 Stevens also received a letter

dated April 7 , 2010, which stated, “To receive severance pay,

you will be required to sign a Severance Agreement and General

Release.” Doc. N o . 49-5. Finally, Stevens acknowledged at her

deposition that she understood that she was eligible for

receiving severance pay only if she signed the document.8 This

is the definition of consideration. Frye v . Hubbell, 68 A . 325,

332 (N.H. 1907) (“[T]he definition of consideration . . . is . .

. a benefit received by the promisor in exchange for the

promise.”).

b. Language of the agreement

7 “Q. …you read through the agreement at least through the end of Section 5 , is that right? A . Yes.” T r . 123. 8 “Q. Did you understand that if you had not signed the release and severance agreement that you would have gotten severance pay anyway? A . N o . Q . You understood that you needed to sign that document in order to get your severance pay? A : Yes.” T r . 109- 110. 24 Stevens next argues that the release was not sufficiently

clear. Her assertion is meritless. In fact, it is difficult to

conceive of a more clearly stated release. First, the Agreement

is entitled “SEVERANCE AGREEMENT AND GENERAL RELEASE.” Doc. N o .

49-3. Its contents are written in simple language. It

expressly states, “Employee acknowledges and agrees that,

pursuant to the terms of the Severance Plan, Employee would not

be entitled to receive the Severance Pay if Employee did not

sign this Agreement.” The Agreement also states in unambiguous

language that, by signing the document, Stevens waived her right

to bring any then-accrued claims against Liberty Mutual,

including those in a non-exhaustive list of more than twenty

specifically identified state and federal causes of action. See

Bryant,

at * 7 . Moreover, in capital letters

above Stevens’ signature, the Agreement states,

EMPLOYEE UNDERSTANDS THAT EMPLOYEE’S RIGHT TO RECEIVE THE SEVERANCE BENEFITS REFERENCED IN THIS AGREEMENT IS SUBJECT TO EMPLOYEE’S COMPLIANCE WITH THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND THAT EMPLOYEE WOULD NOT RECEIVE SUCH BENFITS BUT FOR EMPLOYEE’S EXECUTION OF THIS SEVERANCE AGREEMENT AND GENERAL RELEASE.

EMPLOYEE ALSO UNDERSTANDS THAT BY SIGNING THIS ARGEEMENT, EMPLOYEE WILL BE WAIVING EMPLOYEE’S RIGHTS UNDER FEDERAL, STATE AND LOCAL LAW TO BRING ANY CLAIMS

25 THAT EMPLOYEE HAS OR MIGHT HAVE AGAINST LIBERTY MUTUAL.

EMPLOYEE HAS 45 DAYS TO CONSIDER THIS AGREEMENT. LIBERTY MUTUAL ADVISES EMPLOYEE TO CONSULT WITH AN ATTORNEY . . . PRIOR TO SIGNING THIS AGREEMENT.

Doc. N o . 49-3. The Agreement’s clear and unambiguous language

stating that Stevens was waiving her right to bring legal claims

against Liberty Mutual in exchange for severance pay by signing

the Agreement satisfies the OWBPA statutory requirements. See

Bryant,

at * 7 ; Pallonetti v . Liberty Mut.,

, *8 (S.D.N.Y Feb. 1 1 , 2011).

2. Non-statutory reasons for finding the ADEA waiver not knowing and voluntary

Stevens advances several other reasons, untethered to the

statutory requirements, that the waiver was not knowing and

voluntary. She claims that the severance agreement and general

waiver should not have been combined in one document; that she

waived her ADEA claims under duress; and that she was

fraudulently induced into signing the Agreement.

It is an open question whether non-statutory factors are

relevant to determining the validity of a release that satisfies

the OWBPA factors. See, e.g., Syverson v . Int’l Bus. Machs.

Corp.,

, 1077 n.7 (9th Cir. 2006) (“As we conclude

26 that the . . . Agreement does not satisfy the threshold

statutory requirements, we have no occasion to determine whether

the ‘totality of the circumstances’ inquiry is the proper one

where those requirements are met.”); Wastak v . Lehigh Valley

Health Network,

8 1 , 294 n.8 (3d Cir. 2003) (stating,

in dicta, that the OWBPA statutory requirements establish a

floor but not a ceiling for determining whether a waiver of ADEA

claims is knowing and voluntary). The First Circuit has not

resolved the question, and I need not decide it here because,

even assuming that non-statutory factors are relevant to

determining the validity of the waiver, Stevens has not

identified any aspect of the Agreement that would render her

signature not knowing and voluntary.

a. Combination of severance agreement and waiver in one document

Stevens objects to the fact that the severance agreement

and general release were combined into one document because it

made the document “confusing.” Doc. N o . 50-1. She cites a case

from this court in support of her position. See Doc. N o . 50-1

(citing Budro,

). I am not persuaded that

combining the two documents had any effect on its clarity.

27 In Budro, the court found that a severance agreement and

general release contained in two separate documents was

presented in clear and straightforward language.

, at * 4 . The Budro court, however, did not rely on the

fact that the severance agreement and release were separate

documents to conclude that the language was clear and did not

suggest that a single document containing both would be unclear.

See

The document Stevens signed was entitled, in all

capital letters: “SEVERANCE AGREEMENT AND GENERAL RELEASE.”

There is nothing inherently confusing about combining a

severance agreement and release into a single document the title

of which clearly states its contents, and Stevens identifies no

legal authority to support her position that there i s .

b. Duress

Stevens contends that her signature was not knowing and

voluntary because she was told that, “unless she quickly signed”

the Agreement, Liberty Mutual would fire her for “gross

misconduct”; prospective employers would be told of the basis of

her termination; and she would be unable to collect

unemployment. Doc. N o . 50-1. Stevens’ contentions are

unpersuasive for several reasons.

28 Under New Hampshire law, “[a]s a practical matter, the

claim of undue duress is essentially a claim that the agreement

was not signed voluntarily.” In re Estate of Hollett,

9 , 42 (2003) (quoting 3 C . Douglas, New Hampshire Practice,

Family Law § 1.05, at 12 (2002)). To invalidate a contract on

the basis of duress, “a party must show that it involuntarily

accepted the other party's terms, that the coercive

circumstances were the result of the other party's acts, that

the other party exerted pressure wrongfully, and that under the

circumstances the party had no alternative but to accept the

terms set out by the other party.” In re Yannalfo,

(2002) (quoting Goodwin R.R., Inc. v . State,

(1986)).

Here, there was no requirement that Stevens “quickly” sign

the Agreement. In fact, Stevens had forty-five days to consider

the agreement, and seven days following her signature within

which she could revoke the Agreement. Doc. N o . 49-3. Those

timeframes were clearly stated in the Agreement on the signature

page. Even taking Stevens’ deposition testimony at face value

that she believed she had only seven days to sign the document

there was no requirement that she “quickly” or immediately sign

29 the Agreement, and, in any event, she returned the Agreement

after only two days.

Additionally, Stevens’ statement that her signature was not

knowing or voluntary because Liberty Mutual threatened to fire

her for gross misconduct misrepresents the options available to

her. At her deposition, Stevens explained that Pasquini

presented her with three options:

[T]o quit and I wouldn’t be able to collect unemployment; if I didn’t quit, then M s . Berrios would start performance management and report that I was let go for gross misconduct which would mean that I wouldn’t be able to collect; or I could do the severance agreement [and] would be able to collect unemployment.

Tr. 7 5 . To be sure, Stevens faced a difficult choice. A

difficult choice, however, does not constitute legal coercion.

“The financial stress associated with the loss of a job is not,

without more, sufficient to warrant the conclusion that” her

signature was not knowing and voluntary. See Bryant,

, *6 (citing Melanson v . Borwning-Ferring Indus.,

7 2 , 277 (1st Cir. 2002)). “To hold otherwise would be to

make it virtually impossible for employers and employees to

enter into binding settlements of employment disputes occasioned

by job losses, lay-offs and the like.”

(quoting Melanson,

30 281 F.3d at 2 7 7 ) . Thus, the mere fact that Stevens found all of

her options to be unpalatable does not constitute duress.

c. Fraudulent inducement

Next, Stevens claims she was fraudulently induced to sign

the Agreement because Liberty Mutual told her (1) not to contact

an attorney; (2) that the Agreement was relevant only to her

right to severance; and (3) that she was not waiving her right

to pursue claims against Liberty. Doc. N o . 50-1. For purposes

of a summary judgment motion, I consider the facts in the light

most favorable the non-moving party. Accordingly, I accept

Stevens’ contention that the human resources representative made

these statements, and that Stevens believed she was not

releasing any of her employment-related claims, despite signing

the severance agreement and general release. Nonetheless,

Stevens cannot, as a matter of law, prevail on her claim of

fraudulent inducement.

Under New Hampshire law, fraud in the inducement is a valid

defense to a contract action and can be raised to void a

contract. See, e.g., Nashua Trust C o . v . Weisman,

9 7 ,

400 (1982). As the party seeking to invalidate the Agreement,

Stevens must demonstrate, among other things, that her reliance

31 on the fraudulent statements was justifiable. Van Der Stok v .

Van Voorhees,

(2005) (citing Snierson v .

Scruton,

3 , 77 (2000)).

The standard of justifiable reliance “is not that of

ordinary care, but an individual standard, based upon

[plaintiff's] own capacity and knowledge.” Smith v . Pope,

(1961). It i s , in short, a subjective standard,

rather than an objective reasonable person standard.

Consequently, Stevens’ educational level, intelligence,

experience in the business world, and common sense are all

relevant in determining whether reliance was justified. See

Field v . Mans

9 , 70–71 (1995); see also Restatement

(Second) of Torts, § 541 cmt a (1977) (“Thus, if one induces

another to buy a horse by representing it to be sound, the

purchaser cannot recover even though the horse has but one eye,

if the horse is shown to the purchaser before he buys it and the

slightest inspection would have disclosed the defect.”); Pierce

v . Atchison, Topeka & Santa Fe Ry. Co.,

6 2 , 569 (7th

Cir. 1995) (“Fraudulent inducement is not available as a defense

when one had the opportunity to read the contract and by doing

so could have discovered the misrepresentation.”) (citation

32 omitted).

To the extent Stevens claims to have actually relied upon

fraudulent assurances from the human resources representative to

the effect that, despite signing the agreement, she could still

bring employment-related claims against Liberty Mutual, such

reliance was patently unjustified. First, although Stevens

stated during her deposition that Pasquini told her not to

contact an attorney, she also testified that she had the

opportunity to discuss the agreement with anyone she chose, T r .

108, and the signature page of the Agreement includes a

statement encouraging her to consult an attorney before signing

the document. Doc. N o . 49-3 at 4 . Second, considering Stevens’

education level and business experience, her interpretation of

the Agreement (that it did not require her to waive legal claims

against Liberty Mutual) “is so plainly contrary to the clear

language of the document that it i s , as a matter of law,

unreasonable.” Bryant,

at * 1 0 .

Thus, considering both statutory and non-statutory factors,

I conclude that Stevens’ waiver of her ADEA claim was knowing

and voluntary.

B. Waiver of Non-ADEA Claims (Counts II-XII)

33 Stevens reiterates her arguments relating to duress and

fraudulent inducement with respect to her non-ADEA claims. For

the same reasons discussed above in the context of the ADEA

claims, these arguments are unavailing.

1. Duress

As already explained, Stevens had three options. Though

none appealed to her, a difficult choice among multiple

unappealing options does not amount to legal coercion.

Considering the plain language of the Agreement and the fact

that Stevens was afforded ample time to consult with an attorney

(though she chose not t o ) , “there is no plausible basis to

conclude that [she] was ‘forced’ to sign the Severance

Agreement, or that she was under duress or any other type of

legal incapacity.” See Bryant,

at * 7 .

2. Fraudulent inducement

Stevens also claims that Liberty Mutual fraudulently

induced her to sign the agreement by telling her that “the

Severance Agreement did not prevent her from bringing claims

against Liberty, the Severance Agreement only applied to

severance, and that she did not need to hire an attorney.” Doc.

N o . 50-1 at 2 2 .

34 As already discussed, it is difficult to imagine a legal

document that more clearly and unambiguously describes its

purpose and legal effect than the severance agreement at issue

in this case. Stevens is literate, reasonably well-educated,

and intelligent. And, given her employment history, she must be

presumed to understand the purpose of the bargained-for exchange

to which she agreed by signing the Agreement. In light of these

facts, Stevens’ asserted interpretation of the Severance

Agreement i s , as a matter of law, unreasonable.

Given the record evidence, a rational and properly-

instructed jury could reach only one conclusion in this case:

that Stevens knowingly and voluntarily executed the Severance

Agreement and released any then-accrued claims against Liberty

Mutual in exchange for severance benefits, excepting only those

claims for which the law will not recognize a waiver.9

9 Even if Stevens had signed the Agreement under fraud or duress, she may have ratified it by accepting the benefits of the contract and failing to repudiate it in a timely manner. See Abbadessa v . Moore Bus. Forms, Inc.,

8 , 24 (1st Cir. 1993) (holding that New Hampshire law prohibits a person seeking to rescind a contract from treating the contract as simultaneously rescinded and binding). The Abbadessa court noted, however, that it is an open question in New Hampshire whether “a contract signed under duress is not capable of being ratified until the duress has ended.”

at 24 n.3. Here, neither party offered any evidence on the issues of whether or 35 III. CONCLUSION

For the foregoing reasons, I grant the defendant’s motion

for summary judgment (Doc. N o . 49) without reaching the merits

of Stevens’ claims.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

July 2 9 , 2013

cc: John E . Lyons, Jr., Esq. Debra Weiss Ford, Esq. Douglas J. Hoffman, Esq. Martha Van Oot, Esq. K. Joshua Scott, Esq.

when the duress Stevens claims she experienced was removed. I need not address this issue because I conclude that the waiver is valid on other grounds.

36